Canada is currently undergoing a review of the Copyright Act to determine whether the legislation has struck a fair balance between users, creators, and owners of literary and artistic works. These reviews take place every 5 years – the last one was done in 2012. There are potential ABS/Indigenous rights implicated in this review. Indigenous peoples’ intellectual property rights may be conceptualized as right to heritage or culture, finding expression in songs, arts, crafts, symbols, practices, resources, knowledge, or folklore. Stories, songs or other arts are a link between past, present and future members of the group and are one way of defining kinship. There are inherent issues in using Western Intellectual Property protections for Indigenous TK. One issue is the focus of Western IP law on material (tangible) expression and not ideas behind a cultural expression. Another issue is that of collective versus individual ownership. Those who hold songs or ceremonies hold them for the peoples but they do not necessarily have ownership rights over them. A third issue is the time scale to which property rights attach within Western IP systems. Western IP rights are based on the lifetime of the person who put the performance into tangible property. Many Indigenous peoples view their information and cultural expressions as being owned by the group in perpetuity; passed from ancestors to future generations.

Under a particularly problematic provision of Canada’s current copyright law, the maker of a sound recording has a copyright in the sound recording, consisting of the sole right to do the following in relation to the sound recording or any substantial part thereof: (a) to publish it for the first time, (b) to reproduce it in any material form, and (c) to rent it out, and to authorize such acts. The maker of the sound recording also has the sole right to (a) make the recording available to the public by telecommunication (post it online) or (b) sell or transfer ownership of the tangible object (tape, cd, usb, etc.). Therefore, a person who records the performance of Indigenous songs or stories has, under Canadian copyright law, the sole right to publish the recordings, reproduce the recordings, authorize rental of the recordings, make them available to the public, or sell hard copies of the recordings. In a 2016 article “Copyright Act review an opportunity to press feds on Aboriginal issues,” CAUT provide the example of the Maliseet First Nation, which recounted stories to Laszlo Szabo, professor at the University of New Brunswick, and ended up in a long legal battle over the ownership of those tapes. As the recorder, Professor Szabo had ownership rights over the tapes under the Copyright Act, even though the content of the tapes were Maliseet First Nation stories.

In addition, if the recording is published, both the performer and maker of the recording are entitled to be paid “equitable remuneration” for its performance in public or its communication to the public via telecommunication. Thus, the maker of the recording would be able to profit off of the sharing of stories or songs. Each the performer and the maker receive 50% of royalties. Where the maker of the recording uses the recording in a culturally-inappropriate manner, they may gain financial benefit by breaking inherent Indigenous laws and expropriating Indigenous cultural concepts.

Indigenous peoples have made progress on the international stage in fighting to protect their rights to culture through cultural expressions such as stories and song. In order to further the goal of true reconciliation with Indigenous peoples, it is important that Canada re-evaluate its Copyright Act and amend it to reflect rights of Indigenous peoples declared within the UNDRIP. The UNDRIP establishes the right of Indigenous Peoples to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artifacts, designs, ceremonies, technologies and visual and performing arts and literature.

UNDRIP also places obligations on states to provide redress for cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs. The requirement to respect Indigenous laws, traditions and customs is important for Canada’s future copyright legislation. Indigenous peoples in Canada have certain protocols, or procedures, which provide a “basis for the way dealings occur within a particular situation, community, culture or industry.”

As Canada struggles to reconcile with Indigenous peoples, it will be increasingly important to adopt the UNDRIP and its principles into Canadian law. There are opportunities at hand to do this; the Government of Canada recently announced it would be assembling a working group of ministers to review all of Canada’s laws which relate to Indigenous peoples. The opportunity to protect Indigenous rights to culture, heritage and culturally-appropriate protection of stories, songs and other cultural expressions within the Copyright Act should be seized if the Government is serious about its goal of reconciliation.

Andrea Lesperance is a Research Assistant with ABS Canada. Andrea is currently completing her Juris Doctor at the University of Ottawa’s Faculty of Law. In 2014, Andrea graduated from the University of Windsor’s Faculty of Earth and Environmental Science with Honours. She has focused her academic scholarship on contemporary Indigenous issues and resource management. Andrea previously worked in community development within South African townships.